Kenneth A. Bamberger (University of California, Berkeley – School of Law) & Ella Corren (Bar-Ilan University – Faculty of Law) have posted Untangling Privacy and Competition (Forthcoming, Iowa Law Review, Volume 111 (2026)) on SSRN. Here is the abstract:
This Article argues that competition law, contrary to the hopes of policymakers and scholars that it offers a powerful tool to combat privacy harms, operates as an anti-privacy framework. Far from a means to address widespread surveillance by market-dominant platforms and other data-intensive firms that monetize the collection and analysis of personal information, competition law’s analysis systematically privileges corporate interests at the expense of consumer protection.
This analysis proceeds in two parts. First, the Article identifies the specific competition law concerns raised in recent regulatory enforcement actions and private litigation involving Big Tech, as well as leading scholarship, regarding the ways in which large technology firms secure, enhance, and exploit market power through collection and use of personal data. It then provides an analytic framework that identifies circumstances in which competition concerns align with privacy concerns, pointing in the same regulatory and logical direction, and other circumstances in which those two sets of concerns misalign: where remedies for one might harm the other. Our framework untangles these two sets of concerns and reveals that a majority of competition arguments misalign with privacy. In some misalignment scenarios competition concerns are merely orthogonal to those of privacy, but there is every reason to expect that privacy will be harmed rather than promoted. In others, competition and privacy directly conflict, meaning that promoting competition directly degrades privacy.
Second, the Article reveals two fundamental analytic errors that regulators, courts, and commentators make about privacy in a market setting. These errors dictate privacy-destroying outcomes, even in the instances in which privacy and competition concerns do align.
In the first error, regulators adopt a cramped understanding of the right to privacy as either a superficial concept limited to issues like consent, consumer choice, or data security, or as a means to broader economic goals rather than an essential value on its own terms. Thus, they fail to comprehend privacy as freedom from surveillance. In the second error, competition regulators prioritize markets for surveillance over markets for privacy, either through an agnosticism regarding the substance of the market and a resulting choice to promote the more lucrative and thriving market for surveillance; or through a conceptual confusion between surveillance and privacy markets that obscures the surveillance market’s privacy harms.
These errors combine, we show, in a harsh outcome: that privacy concerns are credited in competition analysis only when doing so promotes the health and competitiveness of privacy-eviscerating surveillance markets. The resulting regulatory imbalance ultimately reinforces the dominance of surveillance-driven business models at the expense of consumer and civil rights.
This analysis underscores the conclusion that privacy cannot be effectively regulated through the back door of competition. Rather, the market for personal data should be regulated directly, as we do in other contexts plagued by market failures and harmful underlying behaviors.
Recommended.